Jharkhand High Court
Manja Alias Kamruddin Mian Son Of Late ... vs The State Of Bihar (Now Jharkhand) on 27 February, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal No. 484 of 1994 (DB)
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[Against the Judgment of conviction dated 30th May, 1994
and Order of sentence dated 3rd August, 1994 passed by
the learned 6th Additional Sessions Judge, Dumka in Sessions
Case No. 220 of 1993]
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1.Manja alias Kamruddin Mian Son of Late Malo Mian
2.Karamat Mian Son of Late Lohan Mian.
3.Jamalluddin Mian Son of Daud Mian
All are resident of village Amgachi (Pokharia) P.S.
Kathi Kund, Subdivision and District-Dumka.
.... Appellants
Versus
The State of Bihar (now Jharkhand) Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellants : Mrs. Jaswinder Mazumdar, Adv.
Mr. Parambir Singh Bajaj, Adv.
For the State : Mrs. Lily Sahay, APP
.....
C.A.V. on 15/02/2023 Pronounced on 27/02/2023
Per Sujit Narayan Prasad, J.:
The instant appeal filed under Section 374 (2) of the Code of Criminal Procedure has been preferred against the Judgment of conviction dated 30th May, 1994 and Order of sentence dated 3rd August, 1994 passed by learned 6th Additional Sessions Judge, Dumka in Sessions Case No. 220 of 1993 by which the appellants have been found guilty and convicted for the offence punishable under Section 302/34 of the Indian Penal Code and under Sections 3 and 4 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for life for -2- the offence under Section 302/34 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for ten years under Section 3 and ten years under Section 4 of the Explosive Substance Act. All the sentences were directed to run concurrently.
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case, as per fardbeyan of informant, which reads as under:
On 02.06.1992 at about 12.00 a.m. the informant (Hassain Ansari) with his younger brother Kabil Ansari and his father Makbul Mian (deceased) had gone to Bhalki Hatia on a bullock cart for selling various articles form their village and after selling the articles they were returning with unsold articles on bullock cart from the Hatia of their village. At about 8.00 p.m. when they reached northern slope in Gumura river three persons came near them and while using abusive language from their voice the informant identified one of them to be Bhikhu Mian and ordered to stop the bullock cart. It is alleged that in the torch light his younger brother and the informant had identified one of them to be Bhikhu Mian and they could not identify to other persons. Accused Bhikhu Mian ordered to assault meanwhile the father of -3- informant who fled away in north direction but his father was chased by them and out of some distance of road towards northern side one bomb was hurled which created sound. Informant went towards his village Pokharia out of fear and there he heard two more sounds of explosion of bomb. The informant went to his village and informed the villagers that his father being murdered in explosion of bomb caused by the accused persons and then several villagers gathered there and came at Gumura River and found on the Southern bank of river the dead body of deceased-Makbul Mian in injured condition due to explosion of bombs.
It is also alleged that the motive of this occurrence is that one year earlier to the occurrence the deceased father had deposed in a bomb and theft case against accused Bhikhu Mian, Karamat Mian and Jamaluddin Mian and they were sent to jail in that case and after being released from the jail they were regularly threatening to murder informant's father and his family members.
3. On the basis of fardbeyan of the informant, a formal F.I.R. was registered against the accused persons and the matter was investigated by the Investigating Officer, who after investigation submitted charge-sheet against the accused persons-appellants.
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Thereafter the cognizance of the offence was taken and the case was committed to the Court of Sessions wherefrom the case was received in the Court of learned 6th Additional Session Judge, Dumka for trial and disposal.
4. In course of trial, the prosecution has examined altogether 13 witnesses, namely, Munsi Hansda (P.W. 1); Ranjan Murmu (P.W. 2); Nabud Mian (P.W. 3); Jiwan Hansda (P.W. 4); Basir Mian (P.W. 5); Jaidhan Hansda (P.W. 6); Md. Asruddin (P.W. 7); Md. Kabil Ansari (P.W. 8); Md. Hassain Ansari (P.W. 9-informant); Dr. Sushil Kumar Marani (doctor) (P.W. 10); Mritunjay Jha (P.W. 11); Mehendra Pd. Gupta (P.W. 11) and Birendra Pd. Singh (P.W. 13).
5. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, in particular the testimony of P.W. 8 and P.W. 9, who have been considered to be eye witnesses recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellants proved beyond all reasonable doubt.
Accordingly, the appellants had been found guilty and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal -5- Code and further sentenced to undergo rigorous imprisonment for ten years under Section 3 and ten years under Section 4 of the Explosive Substance Act. All the sentences were directed to run concurrently, which is the subject matter of instant appeal.
6. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court while convicting the accused persons has committed any illegality or not? 7 Mr. Parambir Singh Bajaj, learned counsel for the appellants has assailed the impugned judgment of conviction and order of sentence on the following grounds:
(I).That P.W. 8, whose testimony is the sole basis of conviction, was at the age of 10 years at the time of occurrence and without getting any satisfaction about the intellectual capacity of this witness, the learned trial Court has accepted his version and as such the acceptance of version of P.W. 8 is contrary to the settled position of law that when any testimony of the tender witness is being accepted it is the duty of the concerned Court to first get the intellectual capacity of the tender witness examined as per the provision contained under Section 118 of the Indian Evidence Act as also the law laid down by Hon'ble Apex Court in this regard. But having no -6- done so, putting reliance upon the testimony of P.W.
8 and without examining the intellectual capacity of the tender witness impugned judgment of conviction and order of sentence has been passed, which cannot be said to be justified.
(II).That P.W. 9 who is also considered to be eye witness but it is evident from his testimony that he after hearing the sound of explosion of bomb had fled away from the place of occurrence and reached his village and when came back along with villagers he found the dead body of his father, the deceased. Therefore, he cannot be said to be eye witness of committing crime of bomb explosion as the prosecution version is. But the trial Court, without appreciating this aspect of the matter, has considered P.W. 9 to be an eye witness and has convicted the appellants and as such the finding recorded by learned trial Court since is also based upon the testimony of P.W 9, the same cannot be said to be proper.
(III).Further argument has been advanced that P.W.9, the informant- Hasain Ansari has deposed in his testimony that he had only recognized Bhikhu Mian @ Mustkim Mian, the original appellant no. 1 (now deceased) and when the bomb was exploded he -7- fled away and when came back he found the dead body of his father, therefore, the complicity as has been alleged by P.W. 9 is only against Bhikhu Mian @ Mustkim Mian. It has been submitted that there is no specific allegation of any overt-act against the original appellant nos. 2 to 4, even then the learned trial Court convicted the appellants for the offence committed under section 302/34 of the Indian Penal Code and 3 and 4 of the Explosive Substance Act. Therefore, the finding so recorded by the learned trial Court since is also based upon the testimony of P.W.9, the same cannot be said to be proper and in that view of the matter, the judgment of conviction and order of sentence is not sustainable in law. (IV).Issue has been raised by referring to testimony of P.W. 8 disclosing the name of all the accused persons but there is no reference of these appellants as an accused by P.W. 9 at the time of recording of fardbeyan.
In this pretext, submission has been made that if the P.W. 9 was knowing the name of all the appellants as has been submitted by P.W. 9 that the names were disclosed by P.W. 8 then what prevented P.W. 9 in disclosing the name of original appellant nos. 2 to 4. Hence, the very veracity of the -8- implications made against the surviving appellants are in cloud.
(V).Further submission has been made that the name of other appellants, namely, Manga Mian, Karamat Mian and Jamalluddin Mian have been referred in fardbeyan due to the reason that on the basis of testimony of father of P.W. 9 (deceased) in a criminal case related to 'death and explosive substance' who had deposed against the appellants, basis upon which the appellants had to go to jail and immediately after release from jail they threatened for the consequences and as such the original appellant nos. 2 to 4 committed the crime of murder of his father. Therefore, the implication of original appellant nos. 2 to 4 by P.W. 9 is based upon suspicion and merely because his father has given evidence against them their names have been disclosed by P.W. 9 in fardbeyan.
(VI).Further submission has been made in this pretext that it would be evident from the version as narrated in fardbeyan of P.W. 9-informant that he has taken specifically the name of Bhikhu Mian, who was having bomb in his hand but has not disclosed the name of other accused persons, the appellants herein and hence, the implication of these appellants -9- is without any basis. On this ground also the impugned judgment of conviction and order of sentence suffers from patent illegality. (VII).Further ground has been taken that no independent witness has been examined while it transpires from the testimony of prosecution witness that place of occurrence where the crime was committed was a thickly populated area but even then no independent witness has been brought by the prosecution reason best known to them. Learned counsel for the appellants on the basis of aforesaid grounds has submitted that the judgment of conviction and order of sentence is not sustainable in the eyes of law and as such the same is fit to be quashed and set aside.
8. While on the other hand, Ms. Lily Sahay, learned Public Prosecutor appearing for the respondent-State has submitted that there is no error in the impugned judgment of conviction and order of sentence since the learned trial Court after taking into consideration the testimony of eye witnesses to the occurrence in particular P.W 8 and P.W. 9 passed the impugned judgment of conviction and order of sentence.
In reply to the admissibility of testimony of P.W. 8, a tender witness having 10 years of age at the time of
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occurrence and 12 years at the time of adducing evidence, submission has been made that his testimony cannot be made inadmissible since he was accompanying his father on the date of occurrence and he identified the appellant Bhikhu Mian as also he has narrated that he identified the other appellants in torch light and as such the learned trial Court has given thrust upon the testimony of P.W. 8 the same cannot be said to be not admissible merely because P.W. 8 was having the age of 10 years at the time of occurrence.
P.W. 9-informant has also supported the prosecution version as stated by him in fardbeyan by disclosing that he was accompanying his father (deceased) along with P.W. 8 and as such it is not right on the part of the appellants to take the ground that P.W. 9 is not eye witness. The trial Court, therefore, has passed the judgment of conviction and order of sentence considering P.W. 9 to be eye witness by taking into consideration the fact that P.W 8 was accompanying with P.W. 9 the same cannot be said to suffer from any error.
So far issue of no independent witness has been examined, it has been submitted that merely because no independent witness had been examined the prosecution cannot be disbelieved for the reason that prosecution version has been found to be substantiated from the
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testimony of P.W. 8 and P.W. 9 and as such as per settled position of law if the prosecution version is being substantiated by eye witnesses, merely because independent witness has not been examined, the prosecution case cannot be vitiated.
Learned Additional Public Prosecutor on the basis of aforesaid ground has submitted that the judgment of conviction and order of sentence requires no interference by this Court.
9. We have heard learned counsel for the parties, perused the material available on record more particularly, the testimony of the witnesses and the finding recorded by learned trial Court.
10. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimony of witnesses, in particular eye witnesses, as per the testimony recorded by learned trial Court.
P.W. 1 to P.W. 7 are the hearsay witnesses, who have corroborated the version of eye witness P.W. 8 and version of P.W. 9-the informant.
They have stated that after hearing the sound of explosion of bomb and being informed by informant that his father was being murdered by accused Bhikhu Mian and other accused persons, they reached to the place of
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occurrence [Gumara River] and found the dead body of deceased lying there and further found the residue of bomb and blood stained earth near the dead body of deceased. They further deposed that they came to know from P.W. 9 that while the deceased along with P.W. 8 and P.W. 9 were returning form Bhalki Hatia on bullock cart and reached at river Gumara they were stopped by Bhikhu Mian and on his order to kill his father, the deceased [his father] tried to escape but was chased by the accused persons and thereafter the first bomb was exploded and after that two more bombs were hurled which exploded resulting into injury to the deceased who died ultimately. They also came to know that all these accused persons were identified in torch light flashed by P.W. 8, who was driving bullock cart.
P.W. 1, at paragraph 3 of his examination-in-chief, has stated that in the same night the Investigating Officer came there and prepared inquest report in his presence and also seized lantern, Chhapal, rope of bomb, blood stained earth and has proved his signature on both those papers as Exhibits 1 and 1/1. While signature of P.W. 7 has been marked as Exhibit 2/2. One more seizure list was prepared in his presence on which his signature was marked as Exhibit 1/3.
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P.W. 8-Mohammad Kabil Ansari, the brother of the informant, was 10 years at the time of occurrence and 12 years at the time of giving deposition. The learned trial Court treating him to be eye witness, which the appellants disputes, passed the judgment of conviction and order of sentence, as such, his testimony is required to be given emphasis.
P.W. 8-Md. Kabil Ansari, in examination-in-chief has deposed that on the fateful day of incidence, he along with his brother and father (deceased) went to Bhalki Hatia on a bullock cart and were returning from the Hatia to their village. He further deposed that he was driving the bullock cart. When they reached at Gumura river then three-four persons came there and asked to stop the bullock-cart. Whereupon he lighted the torch and recognized one of them to be Bhikhu Mian @ Mustkim Mian. He further deposed that two other persons moved away. However in the light of torch he recognized Karamat, Jamaluddin and Manja Mian. Bhikhu Mian told to kill them. This witness has further deposed that his father had told the accused to keep the money but let them to, responding to this the accused told that we have nothing to do with money rather I will kill you. His father in order to save his life moved towards 'Chander Ghee', whereafter the all four accused chased and hurled bomb, sound of which he
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heard. He further deposed that due to fear he moved towards his house. Till then two bombs were hurled, sound of which he heard.
He further deposed that when he reached village he described the incidence to his Bhabhi (sister-in-law).
It is also alleged that the motive of this occurrence is that his father had deposed in a bomb case against accused persons due to which all the four accused had to go to jail and on being released they murdered his father.
In his cross-examination, he has stated that on returning from Hatia, there was no talk with other persons however, there was talk with Bikhu for about 15-20 minutes and other three accused were also present there. He further deposed that he did not give torch to anybody.
P.W. 9-Mohammad Hasan Ansari is the informant in this case. He in his examination-in-chief has deposed what he has stated in fardbeyan before the police. He has deposed that incidence occurred on 02.06.1992. He along with his younger brother Kabil Ansari (P.W. 8) and his father Makbul Mian (deceased) had gone to Bhalki Hatia on a bullock cart for selling various articles from their village and after selling the articles they were returning with unsold articles on some bullock cart from the Hatia of their village. When they reached near Gumura river three-four persons came before them and asked to stop
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the vehicle. Bullock cart was driven by his younger brother. From voice, the informant identified one of them to be Bhikhu Mian @ Mustkin Mian. He further deposed that on torch light being given by his younger brother he identified one of them to be Bhikhu Mian and other persons moved away from there. Accused Bhikhu Mian ordered to murder his father. Due to fear his father tried to escape but he was chased by accused persons and at some distance a bomb was hurled sound of which they heard. Informant has further deposed that due to fear they also went towards their village and heard two more sounds of exploding bombs. The informant went to his village and informed the villagers about the incidence. Several villagers gathered there and they came at Gumura River and found on the Southern bank of river the dead body of deceased-Makbul Mian.
It is also alleged that the motive of this occurrence is that one year earlier to the occurrence the father of the informant had deposed in a 'bomb and theft' case against accused Bhikhu Mian, Karamat Mian and Jamaluddin Mian in which they were sent to jail and after being released from the jail the appellants were regularly threatening to murder his father and his family members.
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He identified his signature on the fardbeyan, which was marked as Exhibit 1/6. He further identified signature of Churkha which was marked as Exhibit 1/7.
In his cross-examination, he has stated that no villagers came with Chowkidar at the place of occurrence.
P.W. 10-Dr. Sushil Kumar Marandi is the doctor, who had conducted post mortem and found following ante mortem injuries on the dead body:
A.(i).Lacerated wound white cleared margin over the left upper arms with fracture of the fumerous
(ii).multiple abrasion over the right arm in the ulnar surface.
(iii).Lacerated wound 6"X4" X protruding of internal organ with margin charring area the right side of the lower part of chests On further Dissections there was fracture of VII to XII ribs of right side.
On further dissection pleura and lungs found lacerated. (B).On dissection of abdomen large intestine found lacerated and raptured including liver and right kidney huge collections of blood found with abdominal cavity.
The doctor has opined that the cause of death was due to haemorrhage shock as a result of injury no. 3 which was sufficient enough to cause death in ordinary course of nature.
P.W. 11-Mrityunjay Jha, is an Assistant in legal Section of Collectorate, Dumka and proved Exhibit 3 which is sanction order given by the Deputy Commissioner, Dumka for launching prosecution under Section 3 and 4 of the Explosive Substance Act.
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P.W. 12 - Mahendra Prasad Gupta is the Investigating Officer of the case and after getting
information about the occurrence through Chowkidar he made entry in station diary and rushed to the place of occurrence and recorded fardbeyan of informant and also inspected the place of occurrence and found blood stains. He further found the torn pieces of shirt of deceased Makbul Mian and his Hawai Chappal and one lantern with broken glass and seized all these articles in presence of witnesses and prepared seizure list of the same which was marked as Exhibit 5. He further prepared inquest report of dead body in presence of witnesses, which was marked as Exhibit 6. He also seized torn pieces of shirt and other bomb material and prepared seizure-list which was marked as Exhibit 5/1. He proved formal F.I.R, which was marked as Exhibit 7.
P.W. 13-Birendra Prasad has proved Kathikund Sanha Entry No. 43 dated 2.6.1992 as written by Sri Mahendra Prasad Gupta the then Officer-in-Charge of Kathikund Police Station.
11. The learned trial Court on the basis of oral as well as documentary evidence available on record passed the impugned judgment or conviction and order of sentence, which is the subject matter of instant appeal.
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12. This Court, after having considered the testimony of witnesses in particular testimony of P.W. 8, P.W. 9, the doctor and the Investigating Officer, is now proceeding to consider the argument advanced by learned counsel for the appellants.
13. Argument has been advanced that P.W. 9 although is an informant but he has not disclosed the name of appellant nos. 2 to 4 rather he had only disclosed the name of appellant-Bikhu Mian. However, reference of the names of these appellants find mentioned in the fardbeyan that these appellants since have been convicted on the basis of testimony given by his father (deceased), therefore, his father was threatened and when these appellants came out from jail they murdered his father
14. We have considered the fardbeyan and found therefrom that in the first part allegation has been leveled by P.W. 9 (informant) that while he was returning from Hatia along with his father and younger brother (P.W.8) on foot with his by-cycle ahead the bullock cart which was driven by his younger brother having torch in his hand, in the mid-way, three persons came near to them and asked them to stop the bullock cart. He further stated that there was dark in the night however he recognized from the voice that one of them was accused Bikhu Mian. In the meantime, his younger brother lighted the torch, as such
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they recognize the accused Bikhu Mian, however, other two persons succeeded in fleeing away. It has further been stated that accused Bikhu Mian has told to kill them whereupon due to fear his father went towards north and were chased by accused persons. The informant has further stated that thereafter he heard the sound of explosion of bomb and they also fled away to village from the place of occurrence and reached to village and told the villagers raising halla that Bikhu had killed his father. Whereafter, they went to the place of occurrence and found the dead body of his father.
The reference of identification of appellant no. 1- Bikhu Mian @ Mumtkin Mian (now deceased) had come on being identified by P.W. 8 in torch light. It is, thus, evident from the story narrated by P.W. 9 that he had seen bomb in the hand of Bikhu Mian and none others.
They (informant party) fled away and when they came back they seen that their father has died.
It is, therefore, evident from the fardbeyan that P.W.9 had only seen Bikhu Mian and heard the sound of bomb in the direction in which the deceased went and being chased by Bikhu Mian. But in subsequent paragraph the motive of this occurrence has been given to the effect that one year earlier to the occurrence the deceased father had deposed in a bomb and theft case against accused Bhikhu
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Mian, Karamat Mian and Jamaluddin Mian. Consequent thereupon, the accused persons were convicted and sentenced in that case and after being released from jail they were regularly threatening to murder his father and his family members and by this way name of other accused persons (appellant nos. 2 to 4) has come into picture. Therefore, suspicion has been raised that for the reason aforesaid the appellant no. 2 to 4 along with appellant no. 1 had committed murder of his father.
P.W. 9 in his examination-in-chief has supported the prosecution version as recorded in fardbeyan. It is evident from paragraph 2 that he had specifically named accused Bikhu and other persons but as would appear from statement made at paragraph 6 that subsequently he was known from his brother that he had recognized accused Bikhu Mian @ Mustkin Mian, Kamruddin and Jalaluddin Mian in the torch light.
P.W. 8, namely, Kabil Ansari who happens to be younger brother of the informant having age of ten years when the occurrence took place. He has stated that he identified only Bikhu Mian in torch light. Subsequently he said that he also identified in the torch light accused Karamat, Jalaluddin and Mansa Mian. It has been stated by him that Bikhu Mian (now deceased) had asked to assault the deceased and upon this his father in order to
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save his life fled away but the accused persons who were behind them, hurled a bomb, sound of which was heard by him. The reason of assault was also deposed by him that that his deceased father since had deposed in a theft and bomb case against accused persons due to which all the four accused had to go to jail and on being released they murdered his father.
It is, thus, evident from the testimony of P.W. 9, as would be evident from paragraph 6 thereof, that he came to know about appellant no. 2 to 4 only from P.W. 8.
15. The moot question arises as to whether the testimony of P.W. 8 can be said to be admissible in absence of verification by the learned trial Court about his intellectual capacity.
16. A provision has been made in the Indian Evidence as under Section 118 wherein it has been provided that the testimony of the tender witness can be accepted subject to verification of the intellectual capacity of such witness.
For ready reference, Section 118 of the Evidence Act is quote as under:
118. Who may testify. --All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.-- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding
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the questions put to him and giving rational answers to them.
17. The admissibility of tender witness fell for consideration before the Hon'ble Apex Court in the judgment rendered in Virendra alias Buddhu & Anr. Vs. State of Uttat Pradesh [(2008) 16 582], relevant paragraph of which is quoted as under:
19. A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
20. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows : (SCC p. 343, para 5) "5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
21. Subsequently, in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] wherein one of us (Dr. Arijit Pasayat) was a member the Bench held that (SCC p.
67, para 7) though "[t]he decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who
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notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath." but"[t]he decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous". The Bench further held as under : (Ratansinh case [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC p. 67, para 7) "7. ... This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
The Hon'ble Apex Court further in the case judgment rendered in the case of Nivrutti Pandurang Kokate & Ors Vs. State of Maharashtra [(2008) 12 SCC 565], wherein at paragraph 10 it has been held as under:
10. "6. ... The Evidence Act, 1872 (in short „the Evidence Act‟) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease--whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States [40 L Ed 244 : 159 US 523 (1895)] . The evidence of a child witness
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is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka [(2001) 9 SCC 129 : 2002 SCC (Cri) 413] .)
7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows : (SCC p. 343, para 5) „5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.‟ The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." The above position was highlighted in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004
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SCC (Cri) 7] , SCC pp. 67-68, paras 6-7. Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference.
18. It is, thus, evident from the consideration made hereinabove in the context of Section 118 of the Evidence Act that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the question put to them or from giving rationale answers to the questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. It further appears that a child of tender age can be allowed to testify if he has intellectual capacity to understand questions and given rationale thereto. It further appears that the evidence of a child witness is not required to be rejected per so, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction.
Reference in regard be made to the judgment rendered in Dattu Ramrao Sakhare & Ors vs. State of Maharashtra reported in [(1997) 5 SCC 341] at paragraph 5 held as under:
5. The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such
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evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we may proceed to consider the evidence of Sarubai (PW 2).
Further, the Hon'ble Apex Court in the judgment rendered in Suryanarayana Vs. State of Karnataka reported in [(2001) 9 SCC 129 rendered at paragraph 5 held as under:
5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness.
The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross- examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her
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testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.
19. In the aforesaid background, this Court has examined the testimony of P.W. 8 in order to consider as to whether the learned trial Court has convinced/verified about the quality of said tender witness in order to testify his intellectual capacity to understand question put forth to him and give rationale answers thereto.
20. We have found from scrutiny of testimony of P.W. 8 that no such question was put forth in order to come to such conclusion rather straightway question has been put before him without ascertaining his intellectual capacity. Therefore, according to our considered view based upon the principle laid down by Hon'ble Apex Court as referred hereinabove and on consideration of provision as contained under Section 118 of the Indian Evidence Act, the testimony of P.W.8 cannot be said to be trustworthy.
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21. This Court since has held testimony of P.W. 8 to be not trustworthy and as such the question would be that implication of appellant nos. 2 to 4 in the fardbeyan, since the testimony of P.W. 9 is based upon the testimony of P.W. 8 as would appear from the testimony so recorded of P.W. 8, cannot be said to be reliable, so far complicity of original appellant nos. 2 to 4 are concerned.
P.W. 9 has only disclosed the name of Bikhu Mian, who was seen by P.W. 8 and when bomb was exploded the accused persons fled away and further when they came back no one was there and he had only seen his father lying dead. This testimony clarifies that P.W. 9 had only identified Bikhu Mian and none other rather the name of other appellants, i.e., original appellant nos. 2 to 4 has been taken by him in testimony based upon disclosure so made by P.W. 8 and when the testimony of P.W. 8 has already been considered not be trust worthy, the disclosure of name so made by P.W. 8 basis upon which the P.W. 9 (informant) had disclosed the name of appellant nos. 2 to 4 cannot be said to be reliable dragging these appellants in committing crime.
Further, discrepancies which we have found from the testimony of P.W. 9, as referred under paragraph 6, that he has referred the name of original appellant nos. 2 to 4 but in the fardbeyan the name of Manjha has not been
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taken. The question is that when P.W. 9 has disclosed the name of appellant nos. 2 to 4 then what prevented P.W. 9 to refer the name of Manjha in the fardbeyan as an accused.
This also shows unreliability of the testimony of P.W. 9 so far implication of these appellants are concerned.
22. This Court has considered the testimony of P.W. 5 wherefrom it is evident that area was having full with locality but the prosecution has not examined any independent witness when the specific case is of causing murder by exploding bombs. In that view of the matter, it was incumbent upon the prosecution to examine the independent witness in order to reach to the conclusion about implication in committing crime.
The position of law is well settled that the judgment of conviction can only be passed on the basis of charges is proved beyond all reasonable doubt.
Reference in this regard be made to the judgment rendered in Rang Bahadur Singh & Ors Vs. State of U.P. [(2000) 3 SCC 454, in particular paragraph 22, which reads as under:
22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person
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should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.
Further, reference in this regard be made to the judgment rendered in the case of Sheila Sebastian Vs. R. Jawaharaj &Anr. reported in (2018) 7 SCC 581, wherein at paragraph 28, it has been held as under:
28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
But herein it cannot be said that on the basis of discussions made herein that the charges have been proved beyond all reasonable doubt.
23. We after having reached to such conclusion and is now proceeded to examine the finding recorded by learned
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trial Court and found therefrom that the learned trial Court without examining the issue regarding admissibility of testimony of P.W. 8 in the light of provision as contained under Section 118 of the Indian Evidence Act and based upon the legal proposition as referred hereinabove has accepted the testimony of P.W. 8, which is the basis of testimony of P.W. 9 (Informant) who disclosed the name of appellant nos. 2 to 4 on the strength of testimony given by P.W. 8 and as such the same according to our considered view suffers from material illegality.
Otherwise also, specific allegation is against appellant no. 1-Bikhu Mian now deceased, and the appeal was abated so far appellant no. 1-Bikhu Mian is concerned vide order dated 09.04.2019.
24. This Court, on the basis of discussions made hereinabove, is of the considered view that the prosecution has failed to establish the charge levelled against the present appellants beyond all reasonable doubt, as such the impugned judgment of conviction and order of sentence require interference.
25. Accordingly, judgment of conviction dated 30th May, 1994 and order of sentence dated 3rd August, 1994 passed by the learned 6th Additional Sessions Judge, Dumka in Sessions Case No. 220 of 1993 is hereby quashed and set
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aside so far as surviving appellants-original appellant nos. 2 to 4 are concerned.
26. Resultantly, the appellants, named above are acquitted and discharged from the liability of their bail bonds.
27. In the result, the instant appeal stands allowed.
28. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.